Analysis: Paxton prosecutor misses in comparing lost payday to WWII internment of Japanese-Americans

Special prosecutor Brian Wice, comparing the injustice done to him and his legal team to the Japanese-Americans interned in concentration camps during World War II, has asked the Court of Criminal Appeals to reconsider nullifying their pay agreement to prosecute Attorney General Ken Paxton.

In a Nov. 21 decision, the high court sided 6-3 with the Collin County Commissioners Court, which was disputing a lower court order to pay $205,000 to Wice’s team, in addition to $255,000 which has already been paid.

State law, the high court said, is “unambiguous” that special prosecutors be paid according to a “schedule of fees” setting out “fixed rates or minimum and maximum hourly rates.” Collin County’s fee schedule for a lesser felony case is a flat rate of $1,000 for pretrial work.

In upholding the fee limits, the court noted that the Legislature had written “maximum” into the law in 1987 in specific response to its ruling that year that there was no maximum for attorney fees.

Manny Garcia, a spokesman for the state Democratic Party, charged that the Republicans on the court had “shut down resources for the investigation of the Republican attorney general,” calling it “corruption and obstruction of justice.”

A judge sent the case from North Texas to Houston, supposedly to avoid outside political influence, but the decision was so unusual that it raised more questions about impartiality than it answered.

The genesis of the case itself was that Collin County District Attorney Greg Willis didn’t want to create a perception of corruption in his office. When Willis recused himself from all matters involving Paxton, a judge appointed private attorneys Wice, Kent Schaffer and Nicole DeBorde as substitutes.

The judge agreed in private to have them paid an open-ended $300 an hour, despite the $1,000 flat fee on the schedule.

Paxton’s defenders have questioned why extra resources were authorized for the prosecution in the first place. Attorney Edward Greim, who filed the first lawsuit challenging the payments, said the prosecution of Paxton is fundamentally unfair because he is being treated differently than an “ordinary criminal defendant.”

Should the high court see no reason to reconsider its decision, as Wice requested on Dec. 27, a Harris County judge will have to issue a new order for payment, but that could be difficult, because the Court of Criminal Appeals didn’t say for how much. Make it “lawful,” the court said, but the prosecutors have already collected $275,000. The administrative judge for the region could also consider asking a neighboring district attorney to take over the case.

Whatever the option, Collin County taxpayers will be responsible for the bill.

In his brief asking the court to reconsider, Wice reaches back to Supreme Court Justice Robert Jackson’s dissent in the infamous World War II case of Korematsu v. United States, in which the Supreme Court allowed the government to imprison more than 100,000 Americans solely on the basis of their Japanese ancestry. It is one of the most reviled Supreme Court opinions of all time.

The decision validated an “insidious principle,” the dissenting justice wrote, that of legalized racial discrimination, a precedent that would become a “loaded weapon” for corrupt authorities.

Wice says the decision not to pay him is like that.

The Court of Criminal Appeals, he writes, is also establishing an “insidious principle” and a “loaded weapon,” which will allow some future commissioners court “to derail what it sees as an unjust prosecution by defunding it.”

However, the only thing the two cases have in common, per Wice’s own analysis, is just that — they’re precedents, as are nearly all court decisions. In other words, they have nothing in common.

His main argument has even less to do with the law. In fact, the law itself is the problem. Wice wants the court to throw it out as unfair — both to him and to the court system.

Wice’s arguments earlier in the case were more specific and grounded, but they were all either rejected or ignored by the court. So this time, he asks the court to reach a sweeping conclusion based on little more than its own sense of right and wrong.

He urges the judges to go beyond “the bare words of a statute.”

“Statutes, politics, and justice all must be reconciled,” he writes.

When the Legislature wrote rules for paying court-appointed lawyers, he argues, it amounted to an assault on the power of the judiciary.

“The Legislature is not the toughest kid in the schoolyard free to beat up the judiciary and take its lunch money with impunity,” Wice writes.

Wice’s specific argument is that the Legislature violated the doctrine of separation-of-powers, which prevents the branches of government from getting in each other’s lanes.

Wice says that by passing this law about criminal procedure — something the Legislature does all the time — it was trespassing in the judicial domain.

Wice cites as precedent the court’s decision to dismiss the felony indictments of Gov. Rick Perry over his use of his veto power, a case most people would think works against him, as it involved the court shutting down a runaway special prosecutor.

In that case, the special prosecutor had ignored the fact that “official actions” such as vetoes were excluded by law from being treated as criminal “abuse of office,” excluded specifically to protect elected officials from political intrigues.

The court enforced the law, and dismissed the case, finding that it was the prosecutor who was interfering with another branch.

Here, Wice argues, the court ought to toss out the law as “interference” with the judiciary, and declare its own “inherent power” governing payments for court-appointed attorneys. A prosecutor, in other words, is asking that the law itself be considered an improper infringement on the power of the judiciary to conduct fair trials.

In the simplest terms, Wice argues that it’s unfair if Paxton has money and the prosecutors don’t, that the imbalance harms the court’s “independent interest in ensuring… that legal proceedings appear fair to all who observe them.”

“It is painfully clear that ‘the color of money is the name of the game,’” Wice writes. “If you’re fortunate enough to be Texas Attorney General Ken Paxton, you can lawfully create and endow a defense fund to pay for an armada of top-flight legal talent that most defendants can only dream of.”

Wice even says a Supreme Court decision means that he’s entitled to the same level of funding.

“This court has held the (U.S.) Supreme Court’s mandate of a ‘reasonably level playing field at trial’ is not subject to the Legislature’s preference or predilection; trial courts are tasked with ensuring due process,” Wice writes.

Although Wice cites a Supreme Court case, the language actually comes from a state case in which a criminal defendant pleading insanity was held to be entitled to a court-appointed psychiatrist because “due process requires at least a reasonably level playing field.”

Like all of the fundamental rights in the Constitution, due process is an individual right, not a state privilege. It guarantees a poor defendant the right to some minimal standard for a fair defense; it promises nothing to a prosecutor confronting “an armada of top-flight legal talent.”

Due process is the principle of fairness in legal matters, the protection against prejudiced or unequal treatment. It is related to the very idea of rule of law — the idea that civil disputes and criminal allegations ought to be sorted out according to set rules rather than somebody’s feelings about a situation.

Due process is the only right mentioned twice in the Constitution, in the Fifth and Fourteenth Amendments. Both amendments require that the government offer equal protection of law through uniform procedures.

When Greim, the attorney who first challenged these fees, says Paxton isn’t being treated like other defendants, he is talking about Paxton’s right to due process and equal protection.

As Cornell Law School’s legal dictionary explains, “the Constitution does not require ‘due process’ for establishing laws; the provision applies when the state acts against individuals.”

The definition has an asterisk. “Equal protection forces a state to govern impartially – not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.”

Surprising as it may sound, it is still legal for the government to discriminate on the basis of race, national origin, sex, or any other “protected” classification. Likewise, it may disregard every single guarantee in the Bill of Rights, on one condition.

That is, all of our civil rights come with an asterisk.

The reason the government may still discriminate on the basis of race is that Korematsu is still valid law. In fact, it is one of the secret cornerstones of modern civil rights law.

Korematsu is the asterisk after every Thou Shalt Not in the Bill of Rights.

One might suppose that imprisoning a race of people would be unconstitutional. It is not, in this country, because in 1944 the Supreme Court ruled that the danger of spies made race prisons constitutional, even if racism was usually “suspect” and deserving of “rigid scrutiny” by the courts.

The principle – that’s unconstitutional* (*but the government might have a good reason) – would soon cohere around the “scrutiny” language.

In the 1950s, the National Association for the Advancement of Colored People shifted attention to the first part of the formula, arguing that segregation was “suspect” in the same way, and deserved “strict scrutiny” by the courts.

In 1954, Chief Justice Earl Warren agreed in a landmark desegregation case, citing Korematsu in support of a newly articulated principle that racial discrimination was constitutionally “suspect” and deserving of “strict scrutiny.”

That standard caught on, and was extended to other “fundamental” rights.

In some areas, the First and Fifth Amendments in particular, the injunctions were taken seriously; speech bans and racially discriminatory laws are usually struck down.

But in most of the law, including the other eight amendments in the Bill of Rights, it was the asterisk that got all the attention. As long as the government has a “rational basis” for something, its actions are rarely deemed unconstitutional, even when the Constitution appears to forbid them.

The principle of the asterisk is a complicating principle; the exceptions inevitably swallow the rule and multiply, becoming new rules that apply only until they each get their own asterisk.

After a few decades, equal protection law gets so complicated by the various tiers of protected classes and preferred rights that one of the few things one can say about it for certain is that it’s badly misnamed.

Still, for all the asterisks attached to the principle of equal protection, none establishes the right of a prosecutor to be paid abundantly when pursuing wealthy men or public officials.

But if a court one day were to decide such an asterisk was needed, it would be following, at some remove, the principle of Korematsu.

If a court decided that rights mattered less for men of station, that the state was free to bring all of its resources to bear on any allegation, no matter its rules, that due process allowed one law for you and another for me, that court would be following the same “insidious principle” of Korematsu.

Wice picked Korematsu not because of any relevance, but for the shock value. He wanted to say that the court’s decision was really bad, but one can complain about runny eggs without invoking the Holocaust.

It was, perhaps, not the most convincing variation ever heard of that old refrain, “It’s not the money, it’s the principle.”

But there is a principle to Korematsu, another way to sum up all the asterisks and exceptions: Sometimes, the rules don’t matter. Prejudice wins. And everybody looks the other way.

Jon Cassidy is a reporter for The Texas Monitor and a contributing editor for The American Spectator. He has been an investigative reporter for Watchdog.org and an editor and reporter for The Orange County Register. His work has also appeared in The Wall Street Journal, City Journal, The Federalist, Fox News, Chronicles, Reason, and other publications. He was a 2014 Robert Novak Journalism Fellow, and is a graduate of the University of Southern California. He and his wife Michelle live just outside Houston with their two children.